Appeals court, time may be on NFL’s side in labor dispute with players


NFL players' lawyers Jeffrey Kessler, left, Barbara P. Berens and James Quinn walk with former NFL Players Association executive director DeMaurice Smith after leaving court-ordered mediation at the U.S. Courthouse on Tuesday in Minneapolis. (Hannah Foslien/Getty Images)
May 17, 2011

Monday evening’s court ruling indicates that the NFL finally might have found what it wants after years of resounding defeats in the nation’s courts: a business-friendly panel of appellate judges who can help the league turn the tables on players in the legal dispute that threatens the 2011 season.

Players’ hopes of returning to work immediately were extinguished when the Midwestern appellate judges blocked a lower court’s order to end football’s shutdown, virtually ensuring that players will remain on the sideline at least into the summer. And the judges all but scoffed at some of the players’ arguments, suggesting they might not fare well when the panel considers the overall legality of the lockout next month.

The NFL has long believed it could score with an appeals court that covers mostly red states in the nation’s heartland and whose most liberal members, attorneys say, would be considered moderate on other circuits.

“All [the judges] are going to try to do what the law says, but if the law is ambiguous, and if it’s left to them to consider public policy issues, the players are going to lose,” said Jon Hopeman, an attorney who has won more than 50 cases in front of the Court of Appeals for the 8th Circuit, which is based in St. Louis.

“If the NFL can’t win before the 8th Circuit, they can’t win anywhere.”

The stakes will be high when the appellate panel meets again June 3 to consider whether U.S. District Judge Susan Richard Nelson erred last month when she ordered the NFL to end its lockout of players. NBA players, whose collective-bargaining agreement with the league expires at the end of June, are keen to determine whether they should mimic the football players’ strategy. The NHL is so interested in the outcome of the case it submitted a brief on the NFL’s behalf.

Both realize that an NFL victory on appeal not only would be a blow to NFL players, forcing them to consider abandoning their lawsuit and accepting bargaining concessions if they hope to receive paychecks this season, but also would have consequences throughout professional sports.

It likely would discourage future groups of players from following the NFL players’ lead and abandoning their union representation to challenge sports leagues in federal court, where the leagues historically have been vulnerable to anti-trust claims. (Except for Major League Baseball, which has an antitrust exemption.)

When NFL players took their fight with the league over how to divide $9.3 billion in annual revenue into Nelson’s Minneapolis courtroom, they won Nelson’s overwhelming support in an 89-page ruling. But the strategy may have hit a wall with the 8th Circuit.

“For the average player, there’s a lot at risk here,” said Jessica Horewitz, a former NFL Players Association economic analyst who is currently a director at the Arlington-based consulting firm Gnarus Advisors LLC. She added that Monday’s ruling “definitely swings the pendulum. [But] I don’t think we’re talking about a big swing. I think we’re talking about on the edges.”

The players still have leverage from a separate case that is before another U.S. District Court judge. David S. Doty ruled that NFL owners illegally compiled a $4 billion lockout fund from television money; he is expected to rule soon on the damages the NFL must pony up to players. The league, of course, surely will appeal his ruling — and to the 8th Circuit.

The panel of judges assigned to the lockout matter — Kermit E. Bye, W. Duane Benton and Steven M. Colloton — has given two nods of encouragement to the NFL, with Bye dissenting both times. They gave the league a temporary stay of Nelson’s ruling before granting the full stay Monday.

The stays have kept the lockout, imposed March 12, in place. The NFL claims it shut down as a legal negotiating tactic after collective bargaining talks collapsed March 11. The players, who dissolved their union as talks broke down, counter that the lockout is illegal in the absence of collective bargaining.

Legal experts say the case presents such novel and challenging intersections of labor and antitrust law that it is difficult to handicap from a distance. But they add that its unique nature, the court’s tradition of conservatism and its receptiveness to the NFL’s claims, at least thus far, could work in the owners’ favor.

In its 2-1 ruling Monday, the majority said it had “serious doubts” about Nelson’s interpretation of the law in several areas.

“I would be surprised if they don’t reverse the decision on a number of legal points,” said Gary Roberts, an expert in sports antitrust law and dean of the Indiana University School of Law in Indianapolis. “I think the NFL is a lot more comfortable down in St. Louis than in Minneapolis.”

Colloton and Benton are George W. Bush appointees and hard-core conservatives, attorneys say. Though Bye, a Clinton nominee, is among the most liberal members of the court, Richard D. Snyder, a Minneapolis attorney who chairs his firm’s appellate group, said Bye would be considered moderate on just about any other.

“There are no liberal members of the court, there are just some that are less conservative than others,” a lawyer told the 2011 Almanac of the Federal Judiciary, a respected legal publication that assembles lawyers’ comments on judges anonymously. Added another: “Nobody on this court is on the liberal end. They are a very conservative court.”

Colloton, 48, an alumnus of Princeton and Yale Law School, is generally considered the brainiest and most traditionally conservative panel member, attorneys say. Benton, 60, who has collected a host of advanced degrees, is described as genteel, personable and polite. The Clinton appointee, Bye, 74, was born, educated and trained in North Dakota, where he served as an assistant U.S. attorney in Fargo and former chair of the advisory board for the North Dakota Small Business Investment Company, a venture capital company sponsored by the state.

“The court has a reputation of being conservative,” said David Herr, a Minneapolis-based attorney who said he has argued a couple dozen cases in front of the appellate court. But “I don’t think any of them have any sort of labor-management background . . . They’re all smart, conscientious judges. There’s no one who can be certain they will go one way or the other on a case like this.”

Both sides have hired all-star Washington appellate attorneys to represent them. Paul D. Clement, who argued cases for the government before the Supreme Court as solicitor general from 2005-8, will present the NFL’s case. Theodore B. Olson, who represented George W. Bush during the 2000 recount — and served as solicitor general before Clement — will argue for the players.

The legal machinations have occurred against the backdrop of labor-management unrest in the Midwest, where unions and collective bargaining have been under attack as Wisconsin Governor Scott Walker and others challenge government-funded pensions and other union-negotiated benefits.

Yet experts point out that the dispute between the NFL’s players and owners defies the traditional labor-management picture, blurring the lines between what is considered traditionally conservative (the rights of businesses) and liberal (the rights of workers).

The players, having disclaimed their union, willingly gave up the right to collective bargaining so they could challenge the league with their antitrust lawsuit.

“This case is quite unusual,” said Thomas C. Walsh, a St. Louis attorney who has argued more than 300 appeals, including six before the Supreme Court. “It might require applying some principles not well-established by the Supreme Court or other appellate courts . . . I think both sides have good arguments. It could go a lot of different directions.”

If faced with a loss at the appellate level, the players would have to decide among three nerve-rattling options: appealing to the Supreme Court, a certainly risky and possibly lengthy process; pressing forward with their antitrust lawsuit in front of Nelson while the lockout continues; or sitting down and negotiating a deal. Some experts have said resuming the talks has been their goal all along, but not when the NFL has the leverage.

“If the owners prevail and the lockout stands,” Walsh said, “I think there would be enormous pressure on the players to come back to the table and work things out.”

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